Nolf v. Estate of Schumo

*331OPINION OF THE COURT

PAPADAKOS, Justice.

This is a direct appeal to us by Roland S. and Louella V. Nolf, his wife, (Appellants) pursuant to the provisions of the Judicial Code, Act of July 9, 1976, P.L. 586, No. 142, Section 2, 42 Pa.C.S. Section 722 (1980) from the final order of the Court of Common Pleas of Berks County of July 16, 1982, which held unconstitutional certain provisions of the Pennsylvania Real Estate Tax Sale Law, Act of July 7, 1947, P.L. 1368, Art. VI, Section 602, as amended, 72 P.S. Section 5860.602, and invalidated the tax sale of the property of Annabella D. Mosser (Mosser).

Mosser holds title to some ten acres of real property in Exeter Township, Berks County. The state of the record includes judgment liens held by the Estate of Mary C. Schumo, Deceased (Appellee), and Appellants, and tax liens for the years 1976 and 1977.

The Berks County Tax Claim Bureau (Bureau) notified Mosser that claims had been entered against her for nonpayment of her 1976-1977 county, municipal and school taxes, and further advised her of a one-year redemption period from December 31, 1978, during which she could pay the claim. The notice continues: “If the claim is not paid in full before the end of the redemption period the property will be advertised and sold by the Tax Claim Bureau at a judicial sale, and no further redemption will be allowed after such sale.” (R. 48a, 162a).

Mosser did not redeem the property and the Bureau listed the property for sale on September 10, 1979. Advertisements appeared in a newspaper of general circulation and in the county legal journal listing the property for sale and addressing notice to: “owners of properties described in this notice: to all persons, municipalities and taxing authorities having tax liens, tax judgments or municipal claims against such properties.” (R. 49a, 53a).

The property was sold at the tax sale to Appellants, and the sale was confirmed by decree nisi on October 31, 1979, *332On November 14, 1979, Appellee filed timely objections to the tax sale, alleging it had no notice of the sale from the Bureau and that, as to the estate, the sale was invalid. The Common Pleas Court agreed with Appellee, invalidated the tax sale by its opinion and order of July 20, 1982, and held that the Real Estate Tax Sale Law was unconstitutional insofar as it deprived judgment creditors of notice to tax sales because it deprived them of a valuable property right without due process of law.1

On August 20, 1982, Appellee, as a judgment lienor, had a writ of execution issued against Mosser which directed the Sheriff to sell the subject property on October 8, 1982. The trial court twice stayed the sale (October 4, 1982, October 12, 1982) to permit Appellants to intervene and to post bond as security for any loss to the Estate because of the stay. Since Appellants did not meet the conditions of the stay order, the property was sold by the Sheriff on November 5, 1982, to the Estate.

After the sale, Appellants attempted to have the Sheriffs deed impounded and claimed entitlement to the proceeds of the sale. These claims were dismissed by the trial court on November 10, 1982. An appeal was taken to Superior Court on November 23, 1982, then transferred to us by our order of January 12, 1983, which consolidated these cases.

The central issue before us is the constitutionality of the Real Estate Tax Law, Act of July 7, 1947, P.L. 1368, No. 542, as amended, 72 P.S. Section 5860.101 et seq., which does not require either personal service or notice by mail to judgment creditors of impending tax sales.2

*333The Due Process Clause of the Fourteenth Amendment to the Federal Constitution requires at a minimum that the deprivation of life, liberty or property by adjudication must be preceded by notice and opportunity for hearing appropriate to the nature of the case. The United States Supreme Court beginning with Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 94 L.Ed. 865, 70 S.Ct. 652 (1950), has invoked the Due Process Clause and required states to make efforts to provide actual notice to all parties whose interests are affected by proceedings before a tribunal.

*334In the recent case of Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983), the United States Supreme Court ruled that a mortgagee possessed a substantial property interest that would be significantly affected by a tax sale and that the mortgagee was entitled to actual notice of the sale. We followed the Mennonite decision in First Pennsylvania Bank, N.A. v. Lancaster Tax Claim Bureau, 504 Pa. 179, 470 A.2d 938 (1983), ruling that the notice provisions of the statute under review here were unconstitutional as applied to mortgagees.

We must now decide whether judgment creditors are also entitled to personal or general notice by the Bureau as a matter of due process of law.

Judgment liens are a product of centuries of statutes which authorize a judgment creditor to seize and sell the land of debtors at a judicial sale to satisfy their debts out of the proceeds of the sale. The judgment represents a binding judicial determination of the rights and duties between the parties, and establishes their debtor-creditor relationship for all the world to notice when the judgment is recorded in a Prothonotary’s Office. When entered of record, the judgment also operates as a lien upon all real property of the debtor in that county. 42 Pa.C.S. Sections 4303(a)(b), 1722(b) and 2737(3).

The judgment lien represents security for the underlying debt, Commonwealth v. Meyer, 169 Superior Ct. 40, 82 A.2d 298 (1951), and conveys a right of execution to the judgment creditor in satisfaction of his debt. The judgment not only affects all real property owned by the debtor, but extends to his equitable interests, Auwerter v. Mathiot, 9 Serg. and R. 397 (1823) and beneficial interests as well Davis v. Commonwealth Trust Company, 335 Pa. 387, 7 A.2d 3 (1939).

The existence of a judgment lien prevents a debtor from encumbering or conveying any property he might own in such a way as to divest the effect of the judgment, while also preventing later lienholders from satisfying their debt *335without first paying the earlier lien. The judgment lien thus constitutes a liquidated claim, Educational Society v. W.D. Gordon, 310 Pa. 470, 166 A. 499 (1933), which has value to the judgment creditor. The judgment can be assigned, pledged, or used as collateral and is a valuable form of property. We have already decided that a judgment is property and that a judgment creditor’s interest cannot be deprived without due process of law. Pennsylvania Company v. Scott, 346 Pa. 13, 29 A.2d 328 (1942).

Appellant argues, however, that the judgment creditor has no property right jeopardized by a tax sale, and that no notice is due to him. We disagree. It is true that a judgment lien is called a general lien — unlike a mortgage which is a specific lien against a particular piece of real property. Such has been the recognized law in this Commonwealth for some time. Ruth’s Appeal, 54 Pa. 173 (1867). Our law recognizes that a judgment is a hold on all the debtor’s real estate without discrimination, but our courts have consistently concluded that the judgment creditor is not interested in the property as property, but only in the lien. As was said in Cover v. Black, 1 Barr 493 (1845): “The judgment creditor has neither jus in re nor ad rem as regards the (debtor’s) property. He has a lien, and the law gives a right to satisfaction out of the property, and that is all.” Grevermeyer v. Southern Mutual Insurance Company, 62 Pa. 340 (1869).

While judgment-creditors have neither estate nor right in the lands of their debtor, it has never been the law that they do not have any protectable property interest. Witmer Appeal, 45 Pa. 455 (1863). Quite to the contrary, the judgment itself is property which may be defended by forced judicial sale of the debtor’s land. It is quite properly said that judgment creditors are interested in the property of the debtor only because they have a right to seize it, sell it, and satisfy the debt from the proceeds of the sale. It is this very right of execution which gives a judgment lien its effectiveness and great value. Any judicial proceeding which impairs or diminishes the value and reach of the *336judgment certainly affects its holder adversely. Such is the case before us.

In addition, we note that it is important to separate concepts of secured and unsecured creditors on the one hand from the concepts of general and specific security interests or liens on the other. As we read Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983), due process requires protection of liens because they are property interests. It does not distinguish between general and specific liens. Mortgages are liens — and hence property interests — on specific assets. A judgment is also a lien — and hence a property interest— covering all real property of the debtor against whom it is entered. Judgments are no less property interests because they are general security interests, attaching to all of a debtor’s real property within the territorial jurisdiction of the court among whose records they are filed, rather than to a specific parcel. They are therefore no less entitled to the due process protections set forth in Mennonite Board, supra, and First Pennsylvania Bank, N.A. v. Lancaster County Tax Claims Bureau, 504 Pa. 179, 470 A.2d 938 (1983).

The statute under review gives lien holders the right to redeem property for the benefit of the owner, before a tax sale, 72 P.S. Section 5860.501,3 and permits lien holders to file objections to a tax sale within 60 days after the court *337confirms the sale by its nisi decree, 72 P.S. Section 5860.-607.4 Furthermore, where no objection to the tax sale is timely made the sale operates to divest all liens against the property, except mortgages recorded prior to the tax liens. 72 P.S. 5860.609.5 But how are lienholders to exercise their statutory rights, redeem the property, or timely object to the tax sale when they are not given notice?

The general notice provided in this statute is inadequate to meet the requirements of due process as far as judgment creditors are concerned. Notice directed only to the owner and taxing bodies, as required by the statute, does not advise judgment creditors any more than it does mortgag*338ees, that their interests may be affected by the tax sale. It is argued that general notice is notice to all the world, including judgment creditors, that a piece of real estate is being sold at a tax sale and that all interested parties can participate. Such notice, however, advises the general public only that a piece of real estate is to be sold. It does not inform individuals who have property interests that their interests may be affected by the tax sale. Such individuals are entitled to more than a “squib” in a local newspaper or county law journal buried between the automobile sales and want ads. The general public will neither lose nor gain anything by virtue of a tax sale, but judgment creditors are likely to lose the security of their debts and hence their property.

Upon review we conclude that the l^ck of sufficient notice could have impaired the value of Appellee’s judgment because without notice, Appellee would have no real opportunity to redeem the property, (72 P.S. Section 5860.501), bid at the tax sale, or assert any defects to the sale. Most importantly, the tax sale immediately and drastically diminished the value of Appellee’s judgment by granting the purchaser title free of all liens. 72 P.S. Section 5860.609. In effect, Appellee’s security for its legal debt was nullified without opportunity to be heard because notice was not forthcoming. Further, Appellee cannot even look to the proceeds of the tax sale to satisfy its debt, as occurs in execution sales, because only taxing bodies share in the distribution of the sale proceeds.

We hold, therefore, that tax sales are proceedings which may deprive judgment creditors of property rights, and hence, notice and hearing must measure up to the standards of due process. When the judgment creditor is identified in a judgment that is publicly recorded, constructive notice by publication must be given and supplemented by notice mailed to the judgment creditor’s last known available address, or by personal service as is the case for mortgagees. First Pennsylvania Bank N.A., 504 Pa. at 181, 470 A.2d at 939.

*339Notice by mail or other means as certain to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interests of any party, whether unlettered or well versed in commercial practice, if its name and address are reasonably ascertainable.

Mennonite, 462 U.S. at 800-801, 103 S.Ct. at 2712.

Contrary to Appellants’ arguments, a notice requirement would not unduly burden the Bureau. The Bureau can easily run a judgment search against its tax delinquents, ascertain the names and addresses of judgment creditors, and provide them personal notice of the tax sale, by mail, and assess any costs for the search out of the costs of the tax sale. Such notice is information which the County is constitutionally obliged to give judgment creditors as interested parties to tax sales. Accordingly, under Mullane, Mennonite Board, and First Pennsylvania Bank N.A., the notice provision in Pennsylvania’s Real Estate Tax Sale Law violates the due process rights of judgment creditors. The trial court was, therefore, correct in setting aside the tax sale of September 10, 1979.

Appellants also argue that the trial court erred in refusing to stay Appellee’s sheriff sale of the subject property, (November 5, 1982) impound the sheriff’s deed after the sale, permit Appellants to share in the proceeds of the sale, and preserve the status quo between the parties during this appeal. We have carefully reviewed the record in this matter and find appellant’s arguments meritless.

The grant of a stay of execution is within the sound discretion of the trial court and its decision will not be disturbed absent a clear abuse of that discretion. Pa.R. C.P. 3121(b). See Pennsylvania Company, et al. v. Scott, et al., 329 Pa. 534 at 549, 198 A. 115 at 122 (1938); Augustine v. Augustine, 291 Pa. 15 at 18, 139 A. 585 at 586 (1927); Patterson v. Patterson, 27 Pa. 40 (1856). The trial court’s October 10, 1982, order gave Appellants the opportunity to stay the sale subject to their posting security to protect Appellee’s interests. Appellants were present when *340the order was orally delivered by the trial court, and knew its precise terms. When they chose not to post the security, they forfeited any rights to the. stay or to complain that the sale proceeded. Additionally, since Appellants did not proceed according to Pa.R.C.P. 3132 they were not entitled to have the Sheriffs deed impounded.

As to Appellants’ claim of entitlement to distribution of the proceeds of the sheriff’s sale, their right is subordinate to payment of the costs and tax liens. The sheriff properly distributed the proceeds of the sale first towards satisfying the costs. Since the costs exceeded the bid, nothing remained for Appellants to claim and their request was properly dismissed.

Finally, Appellants argue that the trial court should have directed the Prothonotary to note that the tax sale operated as a “lis pendens” against the subject property. The tax sale itself was a sufficient notice of lis pendens against the property, (See 42 Pa.C.S. Section 4302(a)), as is the existence of Appellants’ judgments and the tax claims on record in the Prothonotary’s office. Since we find no abuse of discretion or error in the actions of the trial court, we will affirm same.

It is so ordered.

ZAPPALA, J., filed a Dissenting Opinion in which McDermott, j., joined.

. The Nolfs appealed that order to Commonwealth Court Re: Upset Sale, Tax Claim Bureau of Berks County, — Pa. Commonwealth Court — (1982) No. 1882 C.D. 1982 which Court transferred the appeal to us because a constitutional question was involved.

. The notice provisions in effect at the time of the tax sale were governed by Section 5860.602 of the Real Estate Tax Sale Law. 72 P.S. Section 5860.602 as amended by the act of September 27, 1973, P.L. 268, No. 74, Section 6 and provided as follows:

*333Notice of Sale

Prior to any scheduled sale the bureau shall give notice thereof, once a week for three (3) consecutive weeks in two (2) newspapers of general circulation in the county, if so many are published therein, and once in the legal journal, if any, designated by the court for the publication of legal notices. Such notice shall set forth (a) the purposes of such sale, (b) the time for such sale, (c) the place of such sale, (d) the terms of the sale including the approximate upset price, (e) the descriptions of the properties to be sold as stated in the claims entered, each description commencing with

Name of Owner

description

Where the owner is unknown and has been unknown for a period of not less than ten years, the name of the owner need not be included in such description.

The description may be given in intelligible abbreviations.

Such published notice shall be addressed to the "owners of properties described in this notice and to all persons having tax liens, tax judgments or municipal claims against such properties.

In addition to such publications, similar notice of the sale shall also be given by the bureau, at least ten (10) days before the date of the sale, by United States Certified mail personal addressee only, return receipt requested, postage prepaid, to each owner as defined by this act and by posting on the property.

The published notice, the mail notice and the posted notice shall each state that the sale of any property may, at the option of the bureau, be stayed if the owner thereof or any lien creditor of the owner on or before the date of the sale enters into an agreement with the bureau to pay the taxes in installments in the manner provided by this act, and the agreement entered into.

No sale shall be defeated and no title to property sold shall be invalidated because of proof that mail notice as herein required was not received by the owner, provided such notice was given as prescribed by this section.

. 5860.501 Redemption of property from effects of tax claims

(a) Any owner, his heirs or legal representatives, or any lien creditor, his heirs, assigns or legal representative, or other person interested, if such other person has a duly executed power of attorney from the owner, his heirs or assigns or legal representative or any of them empowering such person to make payment may, within one (1) year after the first day of July of the year in which the claim was filed and notice given, if the notice was mailed prior to August first, or within one year from the first day of the month in which the notice was mailed, if mailed on or after August first, redeem such property for the benefit of the owner by payment to the bureau of the amount of the aforesaid claim and interest thereon, the amount of any other tax claim or tax judgment due on such property and interest thereon, and the amount of all accrued taxes which remain unpaid, the record costs, including pro rata costs of the notice or notices given in connection with the returns or claims.

. Section 5860.607 Bureau’s return to court; notice; confirmation; appeal

(a) It shall be the duty of the bureau, not later than (60) days after a scheduled sale was held, to make a consolidated return to the court of common pleas of the county, wherein it shall set forth, (1) a brief description of each property to sale, (2) the name of the owner in whose name it was assessed, (3) the name of the owner at the time of sale, and to whom notice by mail was given as provided by this act, (4) a reference to the record of the tax claim on which the sale was held, (5) the time when and the newspapers in which the advertisement for sale was made, with a copy of said advertisement, (6) the time of sale, (7) the name of purchaser, if any, and (8) the price for which each property was sold, or that no bid was made equal to the upset price and the property was sold. Upon presentation of said return, if it shall appear to said court that such sale has been regularly conducted under the provisions of this act, the said return and the sales so made shall be confirmed nisi.

(b) The bureau shall, at the expense of the county, within ten (10) days after confirmation nisi of the return, publish a general notice once in a newspaper of general circulation published in the county, and in the legal journal, if any, designated by rules of court for the publication of legal notices, stating (1) that the return of the bureau with respect to any such sale for taxes has been presented to the court, (2) giving the date of such presentation, and (3) that objections or exceptions thereto may be filed by any owner or lien creditor within sixty (60) days after the date of return, otherwise the return will be confirmed absolutely.

. Section 5860.609 Certain liens divested by sale. Every such sale shall discharge the lien of every obligation, claim, lien or estate with which said property may have or shall become charged, or for which it may become liable, except no such sale shall discharge the lien of any ground rent or mortgage which shall have been recorded before such taxes become liens, and which is or shall be prior to all other liens, except other mortgages and ground rents. 1947, July 7, P.L. 1368, art. VI, Section 609.